Discharge
of Conductor Gordon Rodgers following post incident testing when he tested
positive for the presence of illegal drugs on January 19th, 2009.

COMPANY’S STATEMENT
OF ISSUE:

On January 19, 2009,
Conductor Rodgers was involved in an incident in the Kamloops yard and was required under CN’s
Drug and Alcohol Policy to undergo post incident drug and alcohol testing.
After completing an oral fluids drug test, Conductor Rodgers tested positive
for an illegal drug. On January 26, 2009, a formal investigation was held where
Conductor Rodgers admitted consuming marijuana. Conductor Rodgers was
discharged from the Company for failure to comply with CN’s Alcohol and Drug
Policy.

The Union contends that there was no reasonable cause to
demand a post incident drug test from the grievor, that the grievor
demonstrated no signs of impairment and that the grievor was honest and
forthright during his statement and admitted that he used marijuana while on
days off. The Union requests that Conductor
Rodgers be reinstated without loss of seniority and be made whole.

The Company
disagrees.

FOR THE COMPANY:

(SGD.) P. PAYNE

FOR:
DIRECTOR, HUMAN RESOURCES

There appeared on behalf of the
Company:

S-P Paquette–
Counsel, Montreal

D. Crossan–
Manager, Labour Relations, Prince George

J. Orr–
Assistant Vice-President, BC South,

K. Morris–
Sr. Manager, Labour Relations, Edmonton

P. Payne–
Manager, Labour Relations, Edmonton

K. Smolynec–
Sr. Manager, Occupational Health, Edmonton

And on behalf of the Union:

M. A. Church–
Counsel, Toronto

B. R. Boechler–
General Chairman, Edmonton

R. A. Hackl–
Vice-General Chairman, Saskatoon

B. Willows–
General Chairman, Edmonton

J. Robbins–
General Cairman, Sarnia

P. Vickers–
General Chairman, Sarnia

G. Rodgers–
Grievor

AWARD OF THE ARBITRATOR

The material
before the Arbitrator confirms that as a result of an incident in the Kamloops
Yard on January
19, 2009 the grievor, Conductor Rodgers, was compelled to undergo
drug and alcohol testing. As a result of his non-negative initial screening
test he was required to provide an oral fluid sample. That sample was returned
as positive for the presence of marijuana.

The facts so
disclosed are disturbing. While the grievor asserts that he was not impaired,
the test results speak for themselves. While various statements of the grievor
placed his previous consumption of marijuana at different times, including the
day previous, it appears that he did disclose in an interview with Dr. Robert
Baker that he had in fact consumed marijuana on the day of the incident, some
three hours before reporting for duty. It does not appear disputed that the
effects of marijuana can be felt for some four to eight hours after the point
of consumption.

What the case
discloses is that the grievor, knowing that he was subject to being called to
duty, consumed marijuana and reported for duty in a highly safety sensitive
position under its influence. In the Arbitrator’s view such conduct
demonstrates gross irresponsibility incompatible with employment in the highly
safety sensitive industry of railway operations. The grievor’s willingness to
work under the impairment of marijuana does, in my view, call into question the
viability of the grievor’s ongoing employment. To put it simply, he knowingly
created a situation of extreme peril by deliberately placing himself on duty
while impaired by an illegal drug.

On the whole
the Arbitrator cannot see an appropriate basis for the reinstatement of the
grievor in the case at hand. His accounts of when he consumed marijuana appear
to have been inconsistent, but more fundamentally, I am compelled to conclude
that the grievor put himself and others in danger by placing himself on duty
while under the effects of marijuana. I can attach no weight to his claims that
while he consumed marijuana he was not in fact impaired. The science and
technology in relation to saliva drug testing confirm the contrary. While the
grievor had some twenty-two years of service at the time of his termination,
the gravity of his offence cannot be understated or mitigated by that fact
alone.